A blog devoted to appellate law and advocacy

June 16, 2006

DoTD points to U.S. v. Lucas, 05-2165 (8th Cir., June 16, 2006), which holds that a warrants issued by a state Director of Corrections, pursuant to a statute allowing him to issue warrants for escaped prisoners are invalid, because the 4th amendment requires that they be issued by a “neutral and detached” magistrate. Therefore another conviction of the escapee (based on stuff found in the home during the search incident to the arrest) fails. Despite the fact that this case is based on state law, it does delve into the rather hoary separation of powers issues regrading who can issue warrants under the 4th. The court concludes:

Because the Corrections Director is a member of the executive branch and accountable directly to the Governor, he is not a neutral and detached magistrate for purposes of issuing arrest warrants. Therefore, the "Warrant of Arrest" signed by the Corrections Director was not a valid arrest warrant.

And, the good faith exception doesn’t apply “when the individual who issued the warrant is not neutral and detached.”

One remaining point: could he make this 4th amendment argument at his trial on the escape charge?

August 17, 2005

US v. Jiménez, No. 04-1691, holds that 1) a person didn’t have authority to consent to a search of a room, and the agents were not permitted to conduct a protective sweep of that room – but the error was harmless; 2) it was not an abuse of discretion to hold a evidentiary hearing where the facts were not in dispute; and 3) there were no Crawford,Booker, or FRE 804(b)(3) isusues.

It's been a while, I know. Life happened, but now I'm back. I
used to cover CTA8. But the Clerk of the Court (through a friend) has
graciously agreed to allow us to copy directly his official summaries
of
Eighth Circuit opinions. The official summaries are so good that there's little need for us to summarize the opinions. Anyhow, AL&P can be your first stop for
summaries of CTA8 decisions.

Also, I'd like to publicly thank Michael Gans, Clerk of Court for the Eighth Circuit, for his graciousness. (My go-between guy wishes to remain anonymous.) I'd also like to commend him and the Eighth Circuit for their excellent website. As Doug Berman of SL&P and Mike of C&F have persuasively argued, a court's website says much about its respect for the public, and for the judicial process.

So, to be clear: police and police departments should know damn well that people can and will watch them when they do things in public. The Eight concludes:

In a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions. To take an obvious example, a highway road crew might like to arrest a frustrated motorist who parked his car and watched as the crew took an unauthorized three-hour lunch break, but such an arrest would be a flagrant abuse of government power. The issue is often more complex when police officers are engaged in public law enforcement activities, because some on-lookers may create safety hazards, while others may seek to frustrate valid law enforcement* * *But public police activity invariably draws a crowd of interested but benign on-lookers.

So the message is clear to town attorneys and anyone who advises cops (including general counsels of universities): you can be subject to liability under 1983 if you arrest an onlooker.